Well, here we go again.

Remember the 1995 case in which Harmony Gold, Playmates, and FASA engaged in a three-cornered legal war over whether Playmates had ripped off FASA’s BattleTech with its ExoSquad toys, and whether FASA’s BattleTech had ripped off Harmony Gold-licensed Macross (Robotech) mecha designs? I discussed the matter in a 2009 blog post, as well as the brief revival of the dispute in 2009 when a BattleTech computer game licensee dared to use one of the verboten mecha designs in its trailer.

Today, I became aware of a lawsuit Harmony Gold filed earlier this year against FASA founder Jordan Weisman, video game company Piranha Games (one of the parners in that 2009 BattleTech game under dispute), and a number of others. Under dispute is a new BattleTech computer game—the one being funded by this Kickstarter—in which the verboten “Unseen” mecha designs once again appear.

Piranha has been featuring new images of the Unseen, and not ones based on the newer from-scratch redesigns that were supposed to avoid infringing the trademarked Macross mecha. Several of the images shown in the new lawsuit complaint are clearly recognizable as based on the original models—the ones featured in Harmony Gold’s original lawsuit.

(Oddly enough, there are a couple that aren’t so close. In particular, Harmony Gold thinks the Atlas mech is too close to the appearance of the Macross Armored Valkyrie. This is kind of funny, given that there was a battlemech directly based on the Armored Valkyrie, but that was a completely different model, the Crusader! There are also some other images that HG thinks are too close to the Spartan (Gladiator) and Glaug (Officer’s Battlepod) designs, but they don’t seem to me to be all that close apart from having legs, arms, and cannons.)

Another interesting thing is that the complaint includes the most complete description ever seen in public of the confidential settlement that FASA and Harmony Gold entered into at the end of the 1995 litigation. The terms of the settlement had been completely unknown (being confidential and all), but as part of this complaint, Harmony Gold’s legal team writes:

This prior litigation concluded when the parties agreed to a “Settlement Agreement and Mutual General Release” (the “Settlement Agreement”), which had an effective date of December 19, 1996, and to which Weisman was a signatory. In addition to agreeing to a monetary payment, Weisman and his co-defendants agreed that they would not “make any use, and will not authorize [their] licensees to make any use, of the visual design images of the twelve (12) Battlemechs listed below except as provided in this agreement.” These 12 “Battlemechs” include those detailed below in Paragraph 27, which presents side-by-side comparisons of Harebrained Schemes’ and Weisman’s current warrior robot designs and the corresponding Harmony Gold Robotech designs. Weisman also agreed to the entry of a permanent injunction and acknowledged that violating the use restriction would cause Harmony Gold “irreparable harm.” Further, Weisman agreed that he would not “contest, nor [would he] assist any other person or entity in contesting, Harmony Gold’s exclusive ownership worldwide, excluding Japan,” of the Robotech merchandising rights. This Settlement Agreement is confidential, and therefore has not been attached to this Complaint.

Defendants Piranha and Harebrained Schemes have both filed responses. They were substantially identical, largely consisting of denying Harmony Gold’s charges paragraph by paragraph, then citing a grocery list of reasons why the case should be thrown out.

A little further research on PACER brought up a status report in which Piranha’s legal team explained it this way:

Prior to when the Plaintiff filed the Complaint, Plaintiff asserted rights to the robot warrior images set out in the Complaint. Because of that assertion, in an effort to avoid litigation, and at plaintiff’s request, Piranha provided some images of robot warriors to Plaintiff in order to determine whether Plaintiff would object to them. Piranha wished to use these images commercially, but did not want to do so if litigation would ensue. After providing Plaintiff with the opportunity to inspect and provide input on at least two occasions, it became clear to Piranha that Plaintiff would object to Piranha’s commercial use of virtually any image of a robot warrior. So, Piranha set out to create all new original artwork for its robot warriors for the MechWarrior Online game without further communication with Plaintiff.

The accused robot warrior images of Piranha and the Harebrained Defendants are not substantially similar to those of Plaintiff. Plaintiff’s theory of liability appears to be that any robot warrior image is substantially similar to the images of Plaintiff’s robot warriors. While the images of Plaintiff and Defendants are both images of robot warriors, there are significant differences between them such that they are not substantially similar. In fact, there are multiple third parties who also produce images of robot warriors. Defendants’ images are no closer to the images of Plaintiff than are the third party images. Piranha has not provided Catalyst Game Labs or InMediaRes Productions, LLC with images of warrior robots, and Catalyst and InMediaRes Productions, LLC do not have a license to use any of Piranha’s artwork. Defendants deny Plaintiff’s allegations of, inter alia, copyright infringement, whether willful or innocent, and have asserted numerous defenses, including noninfringement, the scenes a faire doctrine, and the merger doctrine, among others. The Harebrained Defendants further deny the breach of contract allegations.

I do have to admit, Harmony Gold’s eagerness to compare the Atlas to the Armored Valkyrie does lend credence to the idea that they’re willing to claim infringement by pretty much anything that looks like a giant robot. That’s what the “scenes a faire” doctrine is all about: “The loose definition of scenes a faire refers to situations in which there is essentially no other way to express a particular idea except by using certain elements and in such instances, those elements will often be termed ‘scenes a faire.’” In other words, a giant robot is a giant robot is a giant robot.

The “scenes a faire” doctrine was also quoted in the judge’s decision on the FASA vs. Playmates case, in which he explained that a few similar elements didn’t make the ExoSquad frames close enough to the BattleTech mechs to constitute infringement.

9. FASA urges this Court to define the scope of its copyright rights by making a side-by-side comparison with Playmates’ EXO-SQUAD Toys. This type of simplistic comparison is improper. As this Court’s esteemed colleague, Judge Shadur, has precisely determined:

“It is true, of course, that the suggested type of side-by-side comparison is really not the right one to make. Rather, the trick is to begin with the allegedly aggrieved work in one hand and nothing in the other hand and ask ‘Is it copyrightable? And if so, in what respects? To what extent?’ Those limiting questions define whether a comparison need to be made at all and, if so, also defines the universe for such a comparison.”

So, Piranha seems to be trying to file enough serial numbers off that the designs look similar enough to the originals to be accepted by old-school BattleTech fans, but not close enough to be considered identical.

Of course, the problem here is that the original versions of those designs were definitely based on the original Macross designs, because FASA bought licenses to them from someone who (arguably) didn’t actually have the right to sell them. That’s a matter of record, and just changing a few design elements doesn’t erase that history. Nor does it erase that Jordan Weisman agreed to a settlement that said he would prevent any licensees from trying to reuse those designs. It seems to me like it would be hard to claim “coincidence” for those designs, or at least the ones that are more than vaguely similar like the Atlas.

Will those things be important when and if it gets to trial? We’ll just have to wait and see.

It will be interesting to see how this matter shakes out. At this point, the case is still in the early legal-maneuvering stages, and it won’t see the interior of a courtroom until September, 2018 (assuming the parties don’t settle before then). So it’s going to be a while before we get to find out what happens.

All the same, it’s another interesting bit of Robotech publicity. In the run-up to a potential live-action Robotech movie, we might see more of that sort of thing from time to time.

Note: I’ll be discussing this affair live on my dial-in TalkShoe podcast Space Station Liberty on Sunday, July 30 at 1 p.m. Eastern time. Feel free to join us for the discussion!

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